Kelowna couple living in highrise lose legal fight with strata over patio umbrella
A Kelowna couple who splashed out more than $2.5 million for a condo in the One Water Street building will have to brave the harsh Okanagan sun if they want to enjoy their huge patio after the building's strata banned patio umbrellas.
William and Isa Street took Strata Plan EPS7397 to the BC Civil Resolution Tribunal arguing it had treated them significantly unfairly when the Strata denied their request to put a patio umbrella put on their largely uncovered 1,100 square foot deck on the 35th floor.
According to an Oct. 2 BC Civil Resolution Tribunal decision, the Strata said umbrellas could become a safety hazard in high winds so it had passed a rule that they would not be allowed without prior written permission of the Strata.
Separately, a video emerged last week of a resident in a Kelowna highrise battling the wind and part of his patio furniture was scooped up and blown over the railing. The video appears to be from the One Water Street building.
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The decision said in the spring of 2023, the couple wrote to the Strata asking for permission to use an umbrella on their southwest facing deck.
In the letter, the couple stipulated that the umbrella would only be put up when needed, would never be used in even slightly windy conditions and would have a base weighing a minimum of 40 lb.
However, without giving any reasons the Strata denied the request.
The decision said the Streets put an umbrella up anyway.
The Strata then sent them a letter saying someone had complained about their umbrella and awhile later issued them a $50 fine.
Somewhere along the way, the couple took the Strata to the online Tribunal arguing the Strata had treated them significantly unfairly in denying their request for a patio umbrella.
The decision showed a lengthy back-and-forth between the couple and the Strata manager.
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In one email the manager said if left open under high winds, patio umbrellas will fly off balconies and potentially cause personal injury or property damage.
"In essence, it is the few, who don't respect the potential of danger to others, who form the basis of Council's decision," the manager wrote to the couple.
The couple argued that the rule about needing approval showed that if an owner was responsible, they expected the strata to give them permission.
The argument swayed the Tribunal.
In its ruling the Tribunal said the Streets proposal was reasonable and showed that they would use their patio umbrellas safely.
The Tribunal also criticized the Strata council because it had not explained why it refused the request.
"I find the Strata’s actions were burdensome, harsh, and unjust, and therefore significantly unfair," the Tribunal ruled, ordering the Strata to refund the $50 fine.
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However, the couple's patio woes weren't over.
After the couple had taken legal action, the Strata council passed a blanket bylaw banning patio umbrellas completely. The bylaw passed with 83% of condo owners in favour.
The couple argued the bylaw was unjust and made their outdoor space unusable on hot days. They said this could cost them between $300,000 and $500,000 if they sold their unit.
However, the Tribunal declined to intervene.
The Tribunal ruled the Strata had made a democratic decision banning patio umbrellas outright and it was unreasonable for the Streets to expect that bylaws would never change.
In an unusual move, the Tribunal offered the couple some advice.
"The Streets are free to advocate for future bylaw amendments that would allow them to shade their deck. For example, they could petition the strata... (to) hold a special general meeting. They could also consider running for strata council at the next AGM," the Tribunal ruled.
Ultimately, the couple got the $50 they were fined back and half the Tribunals fees, but have been left to brave the scorching sun without any shade come next summer.
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